docket no. 18-7020 & 18a628 jose antonio jimenez

37
DOCKET NO. 18-7020 & 18A628 CAPITAL CASE IN THE UNITED STATES SUPREME COURT JOSE ANTONIO JIMENEZ, Petitioner, vs. JULIE L. JONES, Secretary, Florida Department of Corrections, et al., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE ELEVENTH CIRCUIT COURT OF APPEALS EXECUTION SCHEDULED December 13, 2018 RESPONDENTS’ BRIEF IN OPPOSITION AND RESPONSE IN OPPOSITION TO APPLICATION FOR STAY OF EXECUTION PAMELA JO BONDI ATTORNEY GENERAL LISA-MARIE LERNER Assistant Attorney General [email protected] MELISSA ROCA SHAW Assistant Attorney General [email protected] Office of the Attorney General 1515 No. Flagler Drive, Ninth Floor West Palm Beach, Florida 33401 Telephone: (561) 268-5203 E-Service: [email protected]

Upload: others

Post on 29-Jul-2022

3 views

Category:

Documents


0 download

TRANSCRIPT

Page 1: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

DOCKET NO. 18-7020 & 18A628

CAPITAL CASE

IN THE UNITED STATES SUPREME COURT

JOSE ANTONIO JIMENEZ,

Petitioner,

vs.

JULIE L. JONES,

Secretary, Florida Department of Corrections, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

EXECUTION SCHEDULED

December 13, 2018

RESPONDENTS’ BRIEF IN OPPOSITION AND

RESPONSE IN OPPOSITION TO APPLICATION FOR STAY OF EXECUTION

PAMELA JO BONDI

ATTORNEY GENERAL

LISA-MARIE LERNER

Assistant Attorney General

[email protected]

MELISSA ROCA SHAW

Assistant Attorney General

[email protected]

Office of the Attorney General

1515 No. Flagler Drive, Ninth Floor

West Palm Beach, Florida 33401

Telephone: (561) 268-5203

E-Service: [email protected]

Page 2: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

i

QUESTIONS PRESENTED FOR REVIEW

Whether Certiorari review should be denied because the Eleventh

Circuit Properly Affirmed Dismissal of an Unauthorized Successive

Habeas Petition as it was required to do under the AEDPA, and where

even if the underlying petition was authorized, it was clear Jimenez

would not be entitled to relief as the Hurst and Brady claims were

meritless and do not conflict with any decision of this Court or

involve an important, unsettled question of federal law.

Page 3: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............................................................ i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF CITATIONS ........................................................................................ iii

CITATION TO OPINION BELOW .......................................................................... 1

STATEMENT OF JURISDICTION.......................................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................ 1

FACTUAL AND PROCEDURAL BACKGROUND .............................................. 2

REASONS FOR DENYING THE WRIT ................................................................. 9

Certiorari review should be denied because the Eleventh Circuit

Properly Affirmed Dismissal of an Unauthorized Successive Habeas

Petition as it was required to do under the AEDPA. In any case, even

if the underlying petition was authorized, it is clear Jimenez would not

be entitled to relief as the Hurst and Brady claims were meritless and

do not conflict with any decision of this Court or involve an

important, unsettled question of federal law. .................................................. 9

ARGUMENT ...........................................................................................................11

The Eleventh Circuit Court Of Appeals Properly Affirmed The

District Court’s Dismissal And Properly Denied A Stay Of Execution

Because Jimenez Filed His Successive Habeas Petition In The District

Court Without First Obtaining The Requisite Authorization From The

Court Of Appeals. Further The Underlying Constitutional Claims

Were Resolved Consistent With This Court’s Precedent And Do Not

Present Either An Important Or Unsettled Question Of Federal Law

For This Court’s Review. ..............................................................................11

DENIAL OF STAY .................................................................................................27

CONCLUSION ........................................................................................................28

CERTIFICATE OF SERVICE ................................................................................29

Page 4: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

iii

TABLE OF CITATIONS

Page(s) Cases

Alleyne v. United States,

570 U.S. 99 (2013) ................................................................................................ 15

Almendarez-Torres v. United States,

523 U.S. 224 (1998) .............................................................................................. 15

Antone v. Dugger,

465 U.S. 200 (1984) .............................................................................................. 27

Asay v. State,

210 So. 3d 1 (Fla. 2016) ....................................................................................... 15

Atkins v. Virginia,

536 U.S. 304 (2002) .............................................................................................. 17

Barefoot v. Estelle,

463 U.S. 880 (1983) .............................................................................................. 27

Benchoff v. Colleran,

404 F.3d 812 (3d Cir. 2005) ................................................................................. 22

Blackman v. Davis,

2018 WL 6191348 (5th Cir. Nov. 28, 2018) ........................................................ 23

Bowersox v. Williams,

517 U.S. 345 (1996) .............................................................................................. 27

Brady v. Maryland,

373 U.S. 83 (1963) .................................................................................................. 7

Branch v. State,

234 So. 3d 548 (Fla.) ............................................................................................ 15

Brown v. Muniz,

889 F.3d 661 (9th Cir. 2018) .......................................................................... 23, 24

Cardinale v. Louisiana,

394 U.S. 437 (1969) ........................................................................................ 16, 25

Chapman v. California,

386 U.S. 18 (1967) ................................................................................................ 17

Cole v. State,

234 So. 3d 644 (Fla.) ............................................................................................ 15

Crouch v. Norris,

251 F.3d 720 (8th Cir. 2001) ................................................................................ 22

Davis v. State,

207 So. 3d 142 (Fla. 2016) ................................................................................... 17

Page 5: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

iv

Delo v. Stokes,

495 U.S. 320 (1990) .............................................................................................. 27

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) ................................................................................................ 14

Evans v. Smith,

220 F.3d 306 (4th Cir. 2000) ................................................................................ 23

Finney v. State,

660 So. 2d 674 (Fla. 1995) ................................................................................... 18

Florida v. Powell,

559 U.S. 50 (2010) .......................................................................................... 17, 25

Floyd v. State,

497 So. 2d 1211 (Fla. 1986) ................................................................................. 18

Ford v. Wainwright,

477 U.S. 399(986) ................................................................................................. 21

Fox Film Corp. v. Muller,

296 U.S. 207 (1935) ........................................................................................ 16, 25

Goodwin v. Steele,

814 F.3d 901 (8th Cir. 2014) ................................................................................ 12

Hannon v. State,

228 So. 3d 505 (Fla.) ............................................................................................ 15

Harris v. Alabama,

513 U.S. 504 (1995) .............................................................................................. 19

Herb v. Pitcairn,

324 U.S. 117 (1945) .............................................................................................. 25

Hill v. Alaska,

297 F.3d 895 (9th Cir.2002) ................................................................................. 22

Hill v. McDonough,

547 U.S. 573 (2006) .............................................................................................. 27

Hitchcock v. State,

226 So. 3d 216 (Fla.) ............................................................................................ 15

Hughes v. State,

901 So. 2d 837 (Fla. 2005) ................................................................................... 19

Hurst v. Florida,

––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) .......................... 12, 14, 17

Hurst v. State,

202 So. 3d 40 (Fla. 2016) ..................................................................... 5, 10, 19, 20

In re Cain,

137 F.3d 234 (5th Cir. 1998) ................................................................................ 22

In re Coley,

Page 6: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

v

871 F.3d 455 (6th Cir. 2017) ................................................................................ 12

In re Jones,

652 F.3d 603 (6th Cir. 2010) .......................................................................... 21, 22

In re Jones,

847 F.3d 1293 (10th Cir. 2017) ............................................................................ 12

In re Pickard,

681 F.3d 1201 (10th Cir. 2012) ............................................................................ 23

In re Wogenstahl,

902 F.3d 621 (6th Cir. 2018) ................................................................................ 23

Jenkins v. Hutton,

137 S. Ct. 1769 (2017) .......................................................................................... 14

Jimenez v. Crosby,

861 So. 2d 429 (Fla. 2003) ..................................................................................... 4

Jimenez v. Crosby,

905 So. 2d 125 (Fla. 2005) ..................................................................................... 4

Jimenez v. Fla. Dept. of Corrections,

481 F.3d 1337 (11th Cir.) ................................................................................... 4, 8

Jimenez v. Florida,

--- S.Ct. ---- 2018 WL 4681996 (Dec. 3. 2018) ............................................... 9, 16

Jimenez v. Jones,

137 S. Ct. 1220 (2017) ............................................................................................ 5

Jimenez v. State,

153 So. 3d 906 (Fla. 2014) ..................................................................................... 5

Jimenez v. State,

247 So.3d 395 (Fla. 2018) ................................................................................ 5, 10

Jimenez v. State,

703 So. 2d 437 (Fla. 1997) ................................................................................. 2, 3

Jimenez v. State,

810 So. 2d 511 (Fla. 2001) ..................................................................................... 3

Jimenez v. State,

997 So. 2d 1056 (Fla. 2008) ................................................................................... 4

Jimenez v. State,

2018 WL 4784203 (Fla. Oct. 4, 2018) ................................................................... 7

Kaczmar v. State,

228 So. 3d 1 (Fla. 2017) ....................................................................................... 15

Kansas v. Carr,

136 S. Ct. 633 (2016) ............................................................................................ 15

Lambrix v. Sec’y, DOC,

872 F.3d 1170 (11th Cir. 2017) ............................................................................ 11

Page 7: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

vi

Lambrix v. Singletary,

520 U.S. 518 (1997) .............................................................................................. 24

Lambrix v. State,

227 So. 3d 112 (Fla.) ............................................................................................ 15

Michigan v. Long,

463 U.S. 1032 (1983) ................................................................................ 16, 17, 25

Pannetti v. Quarterman,

551 U.S. 930 (2007) ........................................................................................ 21, 23

Rhines v. Young,

899 F.3d 482 (8th Cir. 2018) ................................................................................ 12

Rhoades v. State,

233 P. 3d 61 (2010) .............................................................................................. 19

Ring v. Arizona,

536 U.S. 584 (2002) ........................................................................................ 13, 18

Roper v. Simmons,

543 U.S. 551 (2005) .............................................................................................. 17

Schriro v. Summerlin,

542 U.S. 348 (2004) .............................................................................................. 20

Scott v. United States,

890 F.3d 1239 (11th Cir. 2018) ...................................................................... 13, 22

Sochor v. Florida,

504 U.S. 527 (1992) .............................................................................................. 24

Street v. New York,

394 U.S. 576 (1969) .............................................................................................. 25

Tompkins v. Sec’y, Dep’t of Corr.,

557 F.3d 1257 (11th Cir. 2009) ................................................................ 13, 22, 23

Tyler v. Cain,

533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ...................................... 12

Woodford v. Visciotti,

537 U.S. 19 (2002) ................................................................................................ 13

Yarborough v. Gentry,

540 U.S. 1 (2003) .................................................................................................. 13

Zack v. State,

228 So. 3d 41 (Fla. 2017) ..................................................................................... 15

Statutes

28 U.S.C. § 2244 ......................................................................................... 21, 22, 23

28 U.S.C. § 2244(b) .......................................................................................... 13, 22

Page 8: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

vii

28 U.S.C. § 2244(b)(2)............................................................................................ 20

28 U.S.C. § 2244(b)(2)(A) ...................................................................................... 12

28 U.S.C. § 2244(b)(3)............................................................................................ 12

28 U.S.C.A. § 2244 (b)(1)(2)(A) ............................................................................ 11

Inst. (Crim.) 7.11 ..................................................................................................... 18

§ 2244(b)(2)(B) ....................................................................................................... 23

Rules

Fed. R. Civ. P. 60(b) ................................................................................................. 5

Page 9: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

1

CITATION TO OPINION BELOW

The opinion below is the Eleventh Circuit Court of Appeals’ decision hold

that the district court correctly dismissed Jimenez’s first two claims for lack of

subject-matter jurisdiction and affirm on the basis of the district court’s well-

reasoned opinion reported at Jimenez v. Sec’y, Florida Dep’t of Corrections, Case

No. 18-15128 (11th Cir. Dec. 13, 2018).

STATEMENT OF JURISDICTION

The Eleventh Circuit issued its opinion on December 13, 2018 affirming the

district court’s denial of jurisdiction because Jimenez had sought review in the

district court without prior authorization under the AEDPA. Petitioner asserts

jurisdiction under USCA 28 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner's statement regarding the applicable

constitutional and statutory provisions involved.

Page 10: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

2

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Jose Antonio Jimenez is under an active death warrant which was

signed on July 18, 2018, and the execution is scheduled for December 13, 2018.

The relevant facts of Jimenez’s murder are outlined in the Florida Supreme Court’s

opinion affirming Jimenez’s conviction and sentence of death, Jimenez v. State,

703 So. 2d 437 (Fla. 1997).

On October 2, 1992, Jimenez beat and stabbed to death sixty-three-

year-old Phyllis Minas in her home. During the attack her neighbors

heard her cry, "Oh God! Oh my God!" and tried to enter her apartment

through the unlocked front door. Jimenez slammed the door shut,

locked the locks on the door, and fled the apartment by exiting onto

the bedroom balcony, crossing over to a neighbor’s balcony and then

dropping to the ground. Rescue workers arrived several minutes after

Jimenez inflicted the wounds, and Minas was still alive. After

changing his clothes and cleaning himself up, Jimenez spoke to

neighbors in the hallway and asked one of them if he could use her

telephone to call a cab.

Jimenez’s fingerprint matched the one lifted from the interior surface

of the front door to Minas’s apartment, and the police arrested him

three days later at his parents’ home in Miami Beach. In 1994, a jury

found him guilty of first-degree murder and burglary of an occupied

dwelling with an assault and battery and unanimously recommended

the death sentence. The court followed the jury’s recommendation,

finding four aggravating circumstances, one statutory mitigating

circumstance, and two nonstatutory mitigating circumstances.

Jimenez, 703 So. 2d at 438-39. After the jury’s unanimous death recommendation,

the court found four aggravating factors: that the defendant was previously

convicted of another capital felony or felony involving the use or threat of

Page 11: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

3

violence; the murder was committed while Defendant was engaged in the

commission of a burglary of an occupied dwelling; the murder was committed

while Defendant was on community control; and the murder was especially

heinous, atrocious, or cruel (HAC). Jimenez, 703 So. 2d at 438 n1. The trial court

found one statutory mitigating factor, that the capacity of the Defendant to

appreciate the criminality of his conduct or conform his conduct to the

requirements of law was substantially impaired. The trial court found two non-

statutory mitigating circumstances: Jimenez’s potential for rehabilitation, to which

the court attributed little weight, and his potential sentence (life with a twenty-five-

year minimum mandatory, calculated by the Department as a ninety-nine-year

sentence with a release date at age eighty-one) which the court gave great weight.

The Florida Supreme Court affirmed Jimenez’s convictions and death

sentence in Jimenez v. State, 703 So. 2d 437 (Fla. 1997). His sentence became final

on May 18, 1998, when this Court denied certiorari. Jimenez v. Florida, 523 U.S.

1123 (1998).

On February 1, 2000, Jimenez filed his initial motion for post-conviction

relief. That motion was subsequently amended and denied by the state trial court

on June 8, 2000. On September 26, 2001, the Florida Supreme Court affirmed the

trial court’s denial of relief in Jimenez v. State, 810 So. 2d 511 (Fla. 2001), cert.

denied, 535 U.S. 1064 (2002). His state petition for writ of habeas corpus, filed in

Page 12: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

4

the Florida Supreme Court on December 11, 2002, was denied in Jimenez v.

Crosby, 861 So. 2d 429 (Fla. 2003), on June 10, 2003. A second petition for writ of

habeas corpus was filed in the Florida Supreme Court May 26, 2004. The Court

denied relief in Jimenez v. Crosby, 905 So. 2d 125 (Fla. 2005), on March 18, 2005.

Jimenez also filed his initial federal petition for writ of habeas corpus in the

U.S. District Court for the Southern District of Florida on January 20, 2004 and

amended it on April 27, 2005. The federal district court dismissed his petition and

then denied the amended petition on January 30, 2006. A second federal habeas

petition was filed pro se on February 28, 2005, and was denied on March 1, 2006.

Jimenez sought certificates of appealability [COA] in his 2006 litigation and the

Eleventh Circuit Court of Appeals denied the COAs in Jimenez v. Fla. Dept. of

Corrections, 481 F.3d 1337 (11th Cir.), cert. denied, 552 U.S. 1029 (2007).

During that same time-period, Jimenez returned to the state trial court and

filed a successive Rule 3.850 motion for post-conviction relief on April 28, 2005.

The trial court denied relief on September 15, 2005, and the Florida Supreme Court

affirmed the trial court’s denial of relief in Jimenez v. State, 997 So. 2d 1056 (Fla.

2008), cert. denied, 557 U.S. 925 (2009).

On November 29, 2010, Jimenez filed another successive motion for post-

conviction relief. That motion was denied February 11, 2011. He filed another

successive motion in the trial court on March 20, 2013. That motion was denied on

Page 13: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

5

April 24, 2014, and the appeal that followed in the Florida Supreme Court was

affirmed in Jimenez v. State, 153 So. 3d 906 (Fla. 2014), cert. denied, 135 S. Ct.

1712 (2015).

Jimenez sought further successive review in the federal district court in a

Rule 60(b) motion (Fed. R. Civ. P. 60(b)), filed May 16, 2014. The federal district

court denied the motion June 12, 2014. Jimenez then filed a motion to alter or

amend the judgment denying his 60(b) motion, which was denied July 29, 2014,

and on August 29, 2014, sought a COA from the district court. On October 28,

2014, the district court denied the COA. He filed his request for a COA in the

Eleventh Circuit Court of Appeals on November 17, 2014. That Court denied the

COA request May 29, 2015. His certiorari petition to this Court was denied on

February 27, 2017, in Jimenez v. Jones, 137 S. Ct. 1220 (2017).

On January 11, 2017 (amended November 3, 2017), Jimenez filed a Hurst v.

State, 202 So. 3d 40, 60 (Fla. 2016), claim in the trial court. Relief was denied on

November 16, 2017. An appeal followed in the Florida Supreme Court, which

affirmed the trial court’s denial of relief on June 28, 2018. See Jimenez v. State,

247 So.3d 395 (Fla. 2018) A rehearing motion was filed July 13, 2018, which the

Florida Supreme Court struck on July 18, 2018.

Litigation Under the Instant Warrant

On July 18, 2018, Governor Scott signed a death warrant for Jimenez’s

Page 14: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

6

execution. (2018 PC 95). On July 19, 2018 the Florida Supreme Court issued a

briefing schedule. (2018 PC 86). Jimenez filed his demands for public records on

July 20, 2018 and the relevant agencies responded by July 22, 2018. (2018 PC 201-

254). A public records hearing was held on July 23, 2018. (2018 PC 255, 785). The

circuit court denied most of the requests but granted some requests for documents

from the Department of Corrections and FDLE. (2018 PC 366-367). Jimenez filed

his successive motion for post-conviction relief on July 24, 2018 (2018 PC 270)

and the State responded (2018 PC 379). The circuit court held a case management

hearing on July 26, 2018. (2018 PC 843). Jimenez filed additional public records

demands on July 27, 2018. (2018 PC 645-676). He then filed a rule 3.800(a)

motion to correct his burglary sentence on July 29, 2018. (2018 PC 677). The State

responded (2018 PC 697) and the circuit court denied the motion on July 30, 2018

(2018 PC 705). The court also denied the additional public records requests. (2018

PC 708). Jimenez filed a motion for rehearing on July 31, 2018 (2018 PC 772),

which was denied (2018 PC 760). The circuit court denied relief on the post-

conviction motion on that same day. (2018 PC 761). Jimenez filed a timely notice

of appeal to the Florida Supreme Court. (2018 PC 782).

On August 6, 2018, Jimenez filed another successive post-conviction

motion, based on information in hand-written notes by the detectives in the original

Page 15: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

7

case. He alleges that the information is novel and supports Brady1 claims. The

State filed its response on August 7, 2018 and the lower court held a hearing on

August 8, 2018, to hear the motion.

The Florida Supreme Court affirmed the denial of Jimenez’s successive

post-conviction motions on October 4, 2018, Jimenez v. State, ___ So. 3d. ___,

2018 WL 4784203 (Fla. Oct. 4, 2018). Jimenez’s petition for writ of certiorari and

application for stay of execution from this decision are pending in this Court in

Case No. 18-6970 and Application No. 18A606.

On December 10, 2018, Jimenez filed a successive petition for writ of

habeas corpus in the United States District Court, Southern District of Florida and

on December 11, 2018, filed an application for a stay of execution. The State filed

responses to both on December 11, 2018, arguing that he was entitled to

resentencing under Florida statutory development of Chapter 2017-1 and a

prospective change to the Savings Clause that he insisted would apply to his case.

He also argued that his Brady/Giglio claims of newly discovered evidence require

his death sentence and convictions to be vacated. The district court, the Honorable

Donald Middlebrooks dismissed the petition as unauthorized and denied a stay

because Jimenez had not sought permission to file a successive petition from the

1 Brady v. Maryland, 373 U.S. 83 (1963).

Page 16: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

8

court of appeals. The court issued its order denying both the successive petition for

writ of habeas corpus and the application for stay on December 12, 2018 (Case No.

18-25165-CIV-MIDDLEBROOKS).

On December 12, 2018, Jimenez filed an appeal in the United States Court

of Appeals for the Eleventh Circuit. (Case No. 18-15128-P) and subsequently filed

his initial brief on December 13, 2018, as well as a motion for stay of execution.

Respondent within the hour time frame mandated by the brief scheduling order

filed its answer brief. The court issued an order holding that “the district court

correctly dismissed Jimenez’s first two claims for lack of subject-matter

jurisdiction and affirm on the basis of the district court’s well-reasoned opinion.”

Jimenez v. Sec’y, Florida Dep’t of Corrections, Case No. 18-15128 (11th Cir. Dec.

13, 2018). Jimenez subsequently filed the instant Petition. This Brief in Opposition

follows.

Page 17: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

9

REASONS FOR DENYING THE WRIT

Certiorari review should be denied because the Eleventh Circuit

Properly Affirmed Dismissal of an Unauthorized Successive Habeas

Petition as it was required to do under the AEDPA. In any case, even

if the underlying petition was authorized, it is clear Jimenez would not

be entitled to relief as the Hurst and Brady claims were meritless and

do not conflict with any decision of this Court or involve an

important, unsettled question of federal law.

Supreme Court Rule 10 provides that review on writ of certiorari is not a

matter of right, but of judicial discretion, and will be granted only when there are

special and important reasons therefor. Sup. Ct. R. 10. Jimenez advances no special

or important reason in this case, and none exists. The procedural ruling of the

Eleventh Circuit Court of Appeals below was correct and not in conflict with that

of any other court of appeals.

This Court recently denied certiorari on Jimenez’s Hurst related claims on

review from the Florida Supreme Court Jimenez v. Florida, --- S.Ct. ---- (2018)

2018 WL 4681996 (Dec. 3. 2018). In that petition, Jimenez asked this Court to

grant certiorari review to “consider the effect that the Florida Supreme Court’s

reading of the Florida capital sentencing statute and identifying elements of capital

murder has upon Jimenez’s death sentence.” See Petition filed September 23, 2018.

This issue should be provided even less traction here, when it was denied below on

jurisdictional grounds as an impermissible successive habeas petition filed without

authorization from the court of appeals.

Page 18: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

10

Jimenez’s claim, even if properly presented in federal court below, would be

subject to the stringent requirements of the AEDPA for filing successive petitions.

No decision from this Court has held Hurst applies retroactively. The Florida

Supreme Court’s denial of the retroactive application of Hurst to Jimenez’s case is

based on adequate and independent state grounds, is not in conflict with any other

state court of last review, and is not in conflict with any federal appellate court.

As will be shown, there is no conflict in the law that would warrant certiorari

review pertaining to the issue of the Court of Appeals’ denial of his motion for stay

of execution and application to file a successive habeas petition. Second, nothing

about the Florida Supreme Court’s retroactivity decision is inconsistent with the

United States Constitution. Indeed, Petitioner cannot cite to any decision from this

or any appellate court that conflicts with the Florida Supreme Court’s decision in

Jimenez, 247 So.3d 395, in which the court determined that Petitioner was not

entitled to relief because Hurst v. State was not retroactive to his death sentence.

Third, the Brady claim2 does not warrant certiorari review as there is no conflict in

federal law and the court of appeals properly affirmed the dismissal where it found

that Panetti does not extend to newly discovered Brady claims and the Brady

2 Currently, Jimenez’s Brady claims is also pending a decision from this Court on

certiorari review from the Florida Supreme Court’s denial of his postconviction

motion in Florida Supreme Court Case number SC18-1321 (filed in this Court

under case number USSC 18-6970).

Page 19: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

11

claims themselves are meritless. As no compelling reason for review has been

offered by Jimenez, certiorari should be denied. Sup. Ct. R. 10.

ARGUMENT

The Eleventh Circuit Court Of Appeals Properly Affirmed The

District Court’s Dismissal And Properly Denied A Stay Of Execution

Because Jimenez Filed His Successive Habeas Petition In The District

Court Without First Obtaining The Requisite Authorization From The

Court Of Appeals. Further The Underlying Constitutional Claims

Were Resolved Consistent With This Court’s Precedent And Do Not

Present Either An Important Or Unsettled Question Of Federal Law

For This Court’s Review.

The decision below does not conflict with any of this Court’s precedent or

present an important or unsettled question of law for this Court’s review.

A. There Is No Conflict In The Law Where Federal Courts Agree that Hurst

Does Not Meet AEDPA’S Requirement For Filing Successive Petitions.

Jimenez’s appeal to the federal courts for relief in the successive habeas

context faces the rather imposing burden of the AEDPA. The lower courts properly

considered this a successive petition. Jimenez’s claim was squarely based upon a

change in the law which falls within the construct of 28 U.S.C.A. § 2244

(b)(1)(2)(A): “the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable” (emphasis added).

“No U.S. Supreme Court decision holds that its Hurst decision is

retroactively applicable.” See Lambrix v. Sec’y, DOC, 872 F.3d 1170, 1182 (11th

Page 20: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

12

Cir. 2017), cert. denied sub nom. Lambrix v. Jones, 138 S. Ct. 312 (2017); see also

In re Coley, 871 F.3d 455, 457 (6th Cir. 2017) (“But even if we assume that Hurst

announced “a new rule of constitutional law,” the Supreme Court has not “made

[Hurst] retroactive to cases on collateral review.”) (quoting Tyler v. Cain, 533 U.S.

656, 662–63, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001)); In re Jones, 847 F.3d

1293, 1295 (10th Cir. 2017) (“The Supreme Court has not held that its decision in

Hurst is retroactively applicable to cases on collateral review.”). As the Eighth

Circuit recently explained in denying permission to file a successive habeas

petition concerning Hurst:

In Case No. 17-1060, Rhines applies for authorization to file a second

or successive habeas petition arguing that “South Dakota’s sentencing

statute is likely unconstitutional” because, contrary to the U.S.

Supreme Court's decision in Hurst v. Florida, ––– U.S. ––––, 136

S.Ct. 616, 193 L.Ed.2d 504 (2016), the statute “does not require that

the jury find each fact necessary to impose a death sentence

unanimously and beyond a reasonable doubt.” See 28 U.S.C. §

2244(b)(3). We deny the Application. Leave to file a second or

successive habeas petition may be granted if “the applicant shows that

the claim relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was

previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). “[A] new rule is

not ‘made retroactive’ unless the Supreme Court holds it to be

retroactive.” Goodwin v. Steele, 814 F.3d 901, 904 (8th Cir. 2014),

citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d

632 (2001). The opinion in Hurst made no mention of retroactivity,

and no subsequent Supreme Court decision has made Hurst

retroactive.

Rhines v. Young, 899 F.3d 482, 499 (8th Cir. 2018).

Page 21: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

13

As such, the Eleventh Circuit Court of Appeals correctly affirmed the

dismissal of the successive habeas petition. Specifically, “all three of Jimenez’s

claims qualify as “second or successive” under 28 U.S.C. § 2244(b), as we have

construed that term in binding precedent. See Jimenez v. Sec’y Dep’t of Corr., --

F.3d. --- (citing Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1260 (11th Cir.

2009); Scott v. United States, 890 F.3d 1239 (11th Cir. 2018)). There is no conflict

among the courts of appeals on this question.

I. There Is No Underlying Constitutional Violation and The State

Court Retroactivity Ruling Rests On Independent And Adequate

State Grounds.

Assuming for a moment Jimenez can overcome the procedural hurdle

presented by a successive petition under the AEDPA, Jimenez has no chance of

success on the merits on the merits. As this Court is well aware, a federal court

may not grant a state prisoner’s habeas application unless the relevant state-court

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States”

or “the state court’s determination of facts was unreasonable in light of the

evidence.” See Woodford v. Visciotti, 537 U.S. 19 (2002) and Yarborough v.

Gentry, 540 U.S. 1 (2003) (discussing and applying the AEDPA).

The Florida Supreme Court’s ruling on retroactivity in this case does not

violate this Court’s relevant precedent. Ring v. Arizona, 536 U.S. 584 (2002).

Page 22: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

14

Perhaps recognizing that since this Court has decided the retroactivity issue in a

manner that forecloses the possibility of relief, Jimenez attempts to avoid this

result by invoking additional constitutional claims based on state law. However,

state statutory law and interpretations of state law do not implicate the denial of a

federal constitutional right and certainly do not warrant this Court’s exercise of

certiorari jurisdiction. See e.g. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)

(noting that “whether the law of the state shall be declared by its Legislature in a

statute or by its highest court in a decision is not a matter of federal concern []” and

that “[e]xcept in matters governed by the Federal Constitution or by acts of

Congress, the law to be applied in any case is the law of the state.”).

Aside from the question of retroactivity, certiorari would be inappropriate in

this case because there is no underlying federal constitutional error as Hurst v.

Florida did not address the process of weighing the aggravating and mitigating

circumstances or suggest that the jury must conduct the weighing process to satisfy

the Sixth Amendment. Petitioner’s contemporaneous burglary conviction, and

prior violent felony conviction, constitute aggravators under well-established

Florida law. These aggravators were sufficient to meet the Sixth Amendment’s

fact-finding requirement under this Court’s established precedent.3 See Jenkins v.

3 § 921.141(6)((listing prior violent felony and murder committed in the course of a

burglary as aggravators).

Page 23: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

15

Hutton, 137 S. Ct. 1769, 1772 (2017) (noting that the jury’s findings that defendant

engaged in a course of conduct designed to kill multiple people and that he

committed kidnapping in the course of aggravated murder rendered him eligible

for the death penalty); Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (rejecting a

claim that the Constitution requires a burden of proof on whether or not mitigating

circumstances outweigh aggravating circumstances, noting that such a question is

“mostly a question of mercy.”); Alleyne v. United States, 570 U.S. 99, 111 n.1

(2013) (recognizing the “narrow exception . . . for the fact of a prior conviction”

set forth in Almendarez-Torres v. United States, 523 U.S. 224 (1998)). There was

no underlying federal constitutional violation in this case.

Respondent would note that this Court has repeatedly denied certiorari to

review the Florida Supreme Court’s retroactivity decisions following the issuance

of Hurst v. State. See, e.g., Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied,

138 S. Ct. 41 (2017); Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S.

Ct. 513 (2017); Lambrix v. State, 227 So. 3d 112 (Fla.), cert. denied, 138 S. Ct.

312 (2017); Hannon v. State, 228 So. 3d 505 (Fla.), cert. denied, 138 S. Ct. 441

(2017); Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S. Ct. 1164

(2018); Cole v. State, 234 So. 3d 644 (Fla.), cert. denied, 17-8540, 2018 WL

1876873 (June 18, 2018); Kaczmar v. State, 228 So. 3d 1 (Fla. 2017), cert. denied,

138 S. Ct. 1973 (2018); Zack v. State, 228 So. 3d 41 (Fla. 2017), cert. denied, 17-

Page 24: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

16

8134, 2018 WL 1367892 (June 18, 2018). Most notably, as mentioned above

Petitioner’s petition for certiorari filed just in September was denied by this Court

December 3, 2018. Jimenez v. Florida, --- S.Ct. ---- (2018) 2018 WL 4681996

(Dec. 3. 2018). Petitioner offers no persuasive, much less compelling reasons, for

this Court to grant review of his case at this late juncture, particularly where it

faces the considerable procedural hurdle of a successive habeas petition and the

deference to state court ruling it is due under the AEDPA.

The Florida Supreme Court’s determination of the retroactive application of

Hurst under the state law Witt standard is based on adequate and independent state

grounds and is not violative of federal law or this Court’s precedent. This Court

has repeatedly recognized that where a state court judgment rests on non-federal

grounds, where the non-federal grounds are an adequate basis for the ruling

independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935); see also Michigan v. Long, 463 U.S. 1032, 1040

(1983) (“Respect for the independence of state courts, as well as avoidance of

rendering advisory opinions, have been the cornerstones of this Court’s refusal to

decide cases where there is an adequate and independent state ground.”);

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that this Court has

no jurisdiction to review a state court decision on certiorari review unless a federal

question was raised and decided in the state court below). If a state court’s decision

Page 25: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

17

is based on separate state law, this Court “of course, will not undertake to review

the decision.” Florida v. Powell, 559 U.S. 50, 57 (2010); Long, 463 U.S. at 1041.

Because the Florida Supreme Court’s retroactive application of Hurst in

Petitioner’s case is based on adequate and independent state grounds, certiorari

review should be denied.

The Eighth Amendment requires capital punishment to be limited “to those

who commit a ‘narrow category of the most serious crimes’ and whose extreme

culpability makes them ‘the most deserving of execution.’” Roper v. Simmons, 543

U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). As

such, the death penalty is limited to a specific category of crimes and “States must

give narrow and precise definition to the aggravating factors that can result in a

capital sentence.” Roper, 543 U.S. at 568. Petitioner’s death sentence was imposed

in accordance with all applicable constitutional principles at the time it was

imposed.4

4 Moreover, Hurst errors are subject to harmless error analysis. See Hurst v.

Florida, 136 S. Ct. at 624. See also Chapman v. California, 386 U.S. 18, 23-24

(1967). Here, the jury recommendation of death was made unanimously by the

jury: The aggravating circumstances found by the trial court and affirmed by the

Florida Supreme Court on appeal were uncontestable (as unanimously found by the

jury at the guilt phase of this case) and the jury recommended death 12-0. See

Davis v. State, 207 So. 3d 142, 174 (Fla. 2016), cert. denied, 137 S. Ct. 2218

(2017) (a jury’s unanimous recommendation “allow[s] us to conclude beyond a

reasonable doubt that a rational jury would have unanimously found that there

were sufficient aggravators to outweigh the mitigating factors.”).

Page 26: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

18

The retroactivity ruling below does not conflict with any of this Court’s

precedent or present this Court with a significant or important unsettled question of

law. Accordingly, certiorari should be denied.

Jimenez’s argument that he was denied his right to have a jury find beyond a

reasonable doubt the “critical elements” that subjected him to the death penalty, is

plainly meritless. Notwithstanding that the death recommendation in this case was

unanimous, his argument ignores Florida’s longstanding practice of using the

beyond-a-reasonable-doubt standard of proof for proving aggravating factors in

Florida. See Fla. Std. J. Inst. (Crim.) 7.11; Finney v. State, 660 So. 2d 674, 680

(Fla. 1995); Floyd v. State, 497 So. 2d 1211, 1214-15 (Fla. 1986). Hurst did

nothing to change this standard. Furthermore, neither Hurst v. Florida nor Hurst v.

State changed the standard of proof as to any required finding in Florida’s capital

sentencing proceedings. Rather, both Hurst v. Florida and Hurst v. State addressed

who makes the findings — the jury versus the judge — not what standard of proof

is used.

Jimenez’s argument that his sentence somehow violates the Eighth

Amendment is plainly meritless. To the extent Jimenez suggests that jury

sentencing is now required under federal law, this is not the case. See Ring, 536

U.S. at 612 (Scalia, J., concurring) (“[T]oday’s judgment has nothing to do with

jury sentencing. What today’s decision says is that the jury must find the existence

Page 27: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

19

of the fact that an aggravating factor existed.”) (emphasis in original); Harris v.

Alabama, 513 U.S. 504, 515 (1995) (holding that the Constitution does not prohibit

the trial judge from “impos[ing] a capital sentence”). No case from this Court has

mandated jury sentencing in a capital case, and such a holding would require

reading a mandate into the Constitution that is simply not there. The Constitution

provides a right to trial by jury, not to sentencing by jury.

Jimenez’s death sentence is neither unfair nor unreliable because the judge

imposed the sentence in accordance with the law existing at the time of his trial.

Petitioner cannot establish that his sentencing procedure was less accurate than

future sentencing procedures employing the new standards announced in Hurst v.

State, 202 So. 3d 40 (Fla. 2016). Certainly, other than speculation, Jimenez has

neither identified nor established any particular lack of reliability in the

proceedings used to impose his death sentence. See Hughes v. State, 901 So. 2d

837, 844 (Fla. 2005) (holding that Apprendi is not retroactive and noting that

“neither the accuracy of convictions nor of sentences imposed and final before

Apprendi issued is seriously impugned”; Rhoades v. State, 233 P. 3d 61, 70-71

(2010) (holding that Ring is not retroactive after conducting its own independent

Teague analysis and observing, as this Court did in Summerlin, that there is debate

as to whether juries or judges are the better fact-finders and that it could not say

“confidently” that judicial factfinding “seriously diminishes accuracy.”) Just like

Page 28: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

20

Ring did not enhance the fairness or efficiency of death penalty procedures, neither

does Hurst. As this Court has explained, “for every argument why juries are more

accurate factfinders, there is another why they are less accurate.” Schriro v.

Summerlin, 542 U.S. 348, 356 (2004). Thus, because the accuracy of Jimenez’s

death sentence is not at issue, fairness does not demand retroactive application of

Hurst.

II. Jimenez’s Brady/Giglio Claim

A. The Procedural Ruling Below Does Not Conflict With Any Of This

Court’s Precedent Or Present An Important Or Unsettled Question Of Law.

The district court below properly dismissed the successive habeas petition

because there was no prior authorization to pursue this claim from the Eleventh

Circuit Court of Appeals. As Jimenez had a prior habeas petition adjudicated on

the merits, Petitioner must have obtained authorization from the court of appeals to

pursue his Brady/Giglio claims and only upon a prima facie showing of relief. §

2244(b)(3)(C). 28 U.S.C. § 2244(b)(2) provides that the “the facts underlying the

claim, if proven and viewed in light of the evidence as a whole, would be sufficient

to establish by clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the underlying

offense.” Jimenez did not even attempt to meet that burden. Reading the rule as

Jimenez suggests and expanding Panetti beyond its recognized bounds would

Page 29: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

21

effectively overturn the plain statutory language governing successive habeas

petitions. Jimenez’s reliance of Pannetti v. Quarterman, 551 U.S. 930 (2007) is

misplaced.

In Panetti, the Supreme Court held that the statutory bar on second or

successive petitions does not apply to claims under Ford v. Wainwright, 477 U.S.

399, 410(986), which prohibited the execution of insane prisoners. Because an

inmate’s competency to be executed cannot be determined until the execution is

imminent, the Court held that the petition was functionally a first petition because

the claim was not ripe until the warrant was signed. Moreover, the claim was based

on changing factual circumstance, i.e. the inmate’s mental condition, which could

not properly be assessed until the close to the execution date.

Additionally, Jimenez relies on In re Jones, 652 F.3d 603 (6th Cir. 2010), to

argue that the gatekeeping procedures of 28 U.S.C. § 2244 do not apply to his

habeas petition. See Petition at 22. In Jones, the court reiterated that the

gatekeeping procedures are not applicable where a habeas petitioner asserts claims

whose predicates arose after the filing of the original petition. There, the petitioner

raised an ex post facto challenge to an amendment to Michigan’s parole system

which occurred two years after Jones filed his initial habeas petition. Id. at 605.

The Jones court held:

Page 30: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

22

Like the Ford claims at issue in Panetti and Martinez–Villareal,

Jones’s ex post facto claim was unripe when his initial petition was

filed—the events giving rise to the claim had not yet occurred. And,

as in Panetti, no useful purpose would be served by requiring

prisoners to file ex post facto claims in their initial petition as a matter

of course, in order to leave open the chance of reviving their

challenges in the event that subsequent changes to the state’s parole

system create an ex post facto violation. As a result, we conclude that

Jones’s ex post facto claim is not properly classified as “second or

successive,” and thus does not require our authorization to go forward

in the district court. In so holding, we join several other circuits that

have reached the closely related conclusion that § 2244(b)'s

limitations on second or successive petitions do not apply to a

numerically second petition challenging a parole determination or

disciplinary proceeding that occurred after the prisoner's initial

petition was filed. See In re Cain, 137 F.3d 234, 236–37 (5th Cir.

1998) (challenge to disciplinary revocation of good-time credits);

Crouch v. Norris, 251 F.3d 720, 723–24 (8th Cir. 2001) (challenge to

parole determination); Hill v. Alaska, 297 F.3d 895, 897–99 (9th

Cir.2002) (challenge to parole determination); see also Benchoff v.

Colleran, 404 F.3d 812, 817 (3d Cir. 2005) (noting that a challenge to

a parole determination would not constitute a “second or successive”

petition under § 2244 if “the claim had not arisen or could not have

been raised at the time of the prior petition,” but holding prisoner's

claim barred because the parole board had rendered an identical

determination before his initial petition was filed).

In re Jones, 652 F.3d 603, 605–06 (6th Cir. 2010).

Moreover, as was noted in the concurrence opinion by the Honorable Judges

Carnes and Tjoflat:

We write separately to express our continued agreement with

this Court’s decision in Tompkins that Brady and Giglio claims

are subject to the second or successive application requirements

set out in 28 U.S.C. § 2244(b). See Tompkins v. Sec’y, Dep’t of

Corr., 557 F.3d 1257, 1260 (11th Cir. 2009); see also Scott v.

United States, 890 F.3d 1239 (11th Cir. 2018) (following the

Page 31: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

23

Tompkins decision). There is no disagreement that Tompkins is

binding precedent in this circuit. Nor is there any circuit split

over the issue of whether Panetti v. Quarterman, 551 U.S. 930,

127 S. Ct. 2842 (2007) made the second or successive

application requirements inapplicable to Brady and Giglio

claims. All three other circuits that have decided the issue since

Panetti agree with ours that the second or successive application

requirements do apply to Brady and Giglio claims. See

Blackman v. Davis, No. 16-11820, —F.3d —, 2018 WL

6191348, at *5 (5th Cir. Nov. 28, 2018) (stating that

petitioner’s contention that Brady and Giglio claims are not

subject to § 2244(b)(2)(B)’s second or successive requirements

has been “rejected conclusively” by the Fifth Circuit); In re

Wogenstahl, 902 F.3d 621, 627–28 (6th Cir. 2018) (holding that

petitioner’s Brady claims were subject to § 2244(b)(2)(B)’s

second or successive requirements because the claims were “not

unripe at the time [the petitioner] filed his initial petition” even

though the petitioner “was unaware” of the facts giving rise to

the claims at that time); Brown v. Muniz, 889 F.3d 661, 668–73

(9th Cir. 2018) (holding that Panetti’s reasoning does not

extend to Brady claims and that they are subject to AEDPA’s

second or successive requirements because “the factual

predicate supporting a Brady claim existed at the time of the

first habeas petition”) (quotation marks and brackets omitted);

see also In re Pickard, 681 F.3d 1201, 1205 (10th Cir. 2012)

(declining to certify second or successive Brady and Giglio

claims under § 2244 because they did not meet the

requirements of § 2255(h)); Evans v. Smith, 220 F.3d 306, 324

(4th Cir. 2000) (concluding pre-Panetti that Brady claims are

subject to § 2244(b)(2)(B)’s second or successive application

requirements and explaining that if they were not “AEDPA’s

purpose of achieving timely, final resolutions of claims in the

interests of justice and out of respect for state judicial processes

would surely be eroded under such a regime”).

As the Eleventh Circuit Court of Appeals well noted, Jimenez’s appeal to the

federal courts for relief in the habeas context faces the rather imposing burden of

Page 32: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

24

the AEDPA. Under Brown v. Muniz, Jimenez’s claim that he could be unaware of

the facts of his own statement made to the police is a completely untenable

argument to be considered an “actionable Brady violation” in the context of Judge

Rosenbaum’s concurring opinion. Here, it is clear through the extensive state

litgation that Tompkins would still prevail Jimenez would have still not been able

to show due diligence or an actionable Brady violation, given the specific facts of

his Brady/ Giglio claims arising from his own statements to the police. Therefore,

certiorari review is not warranted.

a. Even if Jimenez were to get through all of the procedural hurdles,

certiorari review is not warranted when the Brady/Giglio claim

was denied on independent and adequate state grounds.

Aside from the procedural hurdles faced by a successive petition under the

AEDPA, this case would also be an inappropriate vehicle for certiorari review as

the underlying Brady/Giglio claims were procedurally barred under established

Florida law. As this is an adequate and independent state law ground, the petition

should be denied. This Court has consistently adhered to the principle that it will

not review judgments of state courts that rest on adequate and independent state

grounds. Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (“We in fact lack

jurisdiction to review such independently supported judgments on direct appeal:

Since the state-law determination is sufficient to sustain the decree, any opinion of

this Court on the federal question would be purely advisory”); Sochor v. Florida,

Page 33: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

25

504 U.S. 527, 533 (1992) (stating that “this Court lacks jurisdiction to review a

state court’s resolution of an issue of federal law if the state court’s decision rests

on an adequate and independent state ground”); Herb v. Pitcairn, 324 U.S. 117,

125 (1945) (“This Court from the time of its foundation has adhered to the

principle that it will not review judgments of state courts that rest on adequate and

independent state grounds.”).

The Florida Supreme Court specifically found each of the Brady or Giglio

claims to be procedurally barred under independent state law grounds. This Court

has repeatedly recognized that where a state court judgement rests on non-federal

grounds, where the non-federal grounds are an adequate basis for the ruling

independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038 (1983);

see also Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that this

Court has no jurisdiction to review a state court decision on certiorari review

unless a federal question was raised and decided in the state court below); Street v.

New York, 394 U.S. 576, 581-82 (1969). If a state court’s decision is based on

separate state law, this Court “of course, will not undertake to review the

decision.” Florida v. Powell, 559 U.S. 50, 57 (2010). The Florida Supreme Court

found the claim raised by Petitioner untimely and procedurally barred from review

in Petitioner’s successive motion for post-conviction relief. For that reason alone,

Page 34: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

26

certiorari review should be denied.

Page 35: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

27

DENIAL OF STAY

For the reasons set out above, Jimenez has not presented a colorable claim

for relief, and, because that is so, no stay of execution is justified in this case. See

Bowersox v. Williams, 517 U.S. 345 (1996); Delo v. Stokes, 495 U.S. 320 (1990);

Antone v. Dugger, 465 U.S. 200 (1984). Moreover, he cannot demonstrate a

substantial denial of a constitutional right that would be mooted by his execution.

Barefoot v. Estelle, 463 U.S. 880 (1983). As this Court noted in Hill v.

McDonough, 547 U.S. 573, 583-84 (2006), “equity must be sensitive to the State’s

strong interest in enforcing its criminal judgments without undue interference from

the federal courts.” Here, the State’s strong interest in the timely enforcement of a

sentence is not outweighed by the unlikely possibility that Jimenez’s petition for

certiorari will be granted by this Court. The equities in this case tilt decidedly

against Jimenez in favor of the State and the victim’s family members.

Accordingly, the State respectfully requests that this Court deny the instant petition

and application for a stay of execution.

Entry of a stay to review a jurisdictional question from the district court on

an issue with no underlying merit, renders obvious harm to the State, the victims’

families, and, their interest in finality. The stay here is most certainly not in the

public interest, with the public having borne the cost and emotional burden of

extensive litigation over the course of more than twenty years. Further, any stay

Page 36: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

28

entered in this case would be inappropriate where Petitioner has no “substantial

likelihood of success” on the merits. More importantly, however, the last-minute

nature of Jimenez’s filing is of his own making, and he should not profit from his

dilatory and abusive strategy. His request for a stay should be denied.

CONCLUSION

Based on the foregoing, Respondent respectfully requests that this Court

deny the petition for writ of certiorari and the application for stay of execution.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/ Lisa Marie Lerner

LISA-MARIE LERNER

Assistant Attorney General

Florida Bar No. 698271

[email protected]

/s/ Melissa Roca Shaw

MELISSA ROCA SHAW

Assistant Attorney General

Florida Bar No. 99628

[email protected]

Office of the Attorney General

1515 No. Flagler Drive, Ninth Floor

West Palm Beach, Florida 33401

Telephone: (561) 268-5203

E-Service: [email protected]

COUNSEL FOR RESPONDENT

Page 37: DOCKET NO. 18-7020 & 18A628 JOSE ANTONIO JIMENEZ

29

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 13th day of December 2018, a true and

correct copy of the foregoing RESPONDENT’S BRIEF IN OPPOSITION has

been submitted using the Electronic Filing System. I further certify that a copy has

been sent by U.S. mail to: Martin J. McClain, Esquire, McClain and McDermott,

P.A., 141 N.E. 30th Street, Wilton Manors, Florida 33334-1064,

[email protected]. I further certify that all parties required to be served

have been served.

/s/ Lisa Marie Lerner

/s/ Lisa-Marie Lerner

COUNSEL FOR RESPONDENT